Opinion
Case No. 5:03-CR-83 (CDL).
November 15, 2004
ORDER
Defendant, relying upon the Speedy Trial Act, 18 U.S.C. § 3161(b), has filed a motion to dismiss counts one through fifteen and seventeen through twenty of the superseding indictment because he was not indicted on these counts within thirty days of his arrest. The Court finds that the superseding indictment does not violate the Speedy Trial Act, and therefore, Defendant's motion must be denied.
Counts sixteen and twenty-one of the superseding indictment are the two counts charged in the original indictment. The original indictment that included these charges was filed within thirty days of Defendant's arrest.
Section 3161(b) of the Speedy Trial Act requires that "[a]ny . . . indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested . . . in connection with such charges." In this case, Defendant was arrested on September 11, 2003 pursuant to a criminal complaint. The criminal complaint alleged that Defendant had made "harassing and threatening" telephone calls in violation of 18 U.S.C. §§ 2332a, 844(e), and 1951. Attached to the complaint is the affidavit of FBI Agent Michael Thompson, which includes a log of bomb threat phone calls made to 911 from September 1 to September 11, 2003. Although the criminal complaint included numerous telephone calls, the Defendant was only indicted on one of the telephone calls in the original indictment, which was filed on September 24, 2003. Therefore, Defendant was indicted within thirty days of his arrest in connection with charges that were described in the criminal complaint supporting his arrest. Subsequent to the original indictment and more than thirty days after his arrest, a superseding indictment was returned on March 18, 2004 that included charges arising from some of the conduct described in the original criminal complaint (additional telephone calls) as well as charges not mentioned in the original criminal complaint (counterfeit checks and possession of ammunition by a convicted felon). Defendant contends that the information supporting these additional charges was known to the Government at the time that it arrested Defendant, and therefore, the Government was required to indict him on those charges within thirty days of his arrest.
The only issue presented by Defendant's motion to dismiss is whether the Speedy Trial Act precludes the Government from pursuing these charges through its superseding indictment because the Government failed to include these additional charges in the original indictment.
The law of this Circuit requires a rejection of Defendant's argument. In United States v. Mosquera, 95 F.3d 1012 (11th Cir. 1996), the Eleventh Circuit quoted approvingly from the opinion of a fellow member of the Middle District of Georgia District Court as follows:
[T]he Speedy Trial Act does not guarantee that an arrested individual indicted within thirty days of his arrest must, in that thirty-day period, be indicted for every crime known to the government, failing which he may never be charged. In short, the Speedy Trial Act is not a statute of limitations. . . . [The applicable statute of limitations] specifies the time within which an arrested indicted defendant may be charged with additional crimes by superseding indictment.Id at 1013, quoting United States v. Wilson, 762 F. Supp. 1501, 1502 (M.D. Ga. 1991)). Based on the foregoing, the Court denies Defendant's motion to dismiss.
The Court notes that even if it accepted Defendant's argument, the remedy for the alleged violation of the Speedy Trial Act in this case would be dismissal without prejudice. See United States v. Brown, 183 F.3d 1306, 1310 (11th Cir. 1999). In determining whether to dismiss charges with or without prejudice, a court is to consider "the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of reprosecution . . . on the administration of justice." Id. (internal quotation marks omitted). Defendant is charged with making serious, terroristic threats. If dismissal were proper here, it would only be because the Government misinterpreted the statute's application to superseding indictments. Moreover, the closest Eleventh Circuit authority on the issue supports the Government's position. There is no contention that the Government's delay in filing the superseding indictment was the result of the Government's bad faith or misconduct. Furthermore, in the event of a dismissal, reprosecution would be appropriate. There is no indication that Defendant would be prejudiced in his defense if the government were permitted to bring this case again. Id. at 1310. Therefore, the granting of Defendant's motion would actually conflict with the other purposes of the Speedy Trial Act because of the resulting unnecessary delay.
IT IS SO ORDERED.